tionem reddat. Quo casu ad exactissimam quisque diligentiam compel litur reddere rationem: nec sufficit talem diligentiam adhibere, qualem suis rebus adhibere soleret, si modo alius diligentior commodius administraturus esset negotia.

the other hand, just as he who has advantageously managed the affairs of another, makes this person liable to him by an obligation, so he himself is bound to render an account of his management. And the standard which he is bound to observe in rendering an account, is that of the most exact diligence, nor is it sufficient that he should use such diligence as he employs in the management of his own affairs, that is, if it is possible that a person of greater diligence would be likely to manage the affairs of the absent person better.

D. iii. 5. 2; D. xliv. 7. 5; C. ii. 18. 20.

Etiam ignorantes. If the owners had known of the part taken in the management of their affairs, there would have been a mandatum tacitum.

2. Tutores quoque, qui tutelæ judicio tenentur, non proprie ex contractu obligati intelleguntur (nullum enim negotium inter tutorem et pupillum contrahitur): sed quia sane non ex maleficio tenentur, quasi ex contractu teneri videntur. Et hoc autem casu mutuæ sunt actiones: non tantum enim pupillus cum tutore habet tutelæ actionem, sed et ex contrario tutor cum pupillo habet contrariam tutelæ, si vel impenderit aliquid in rem pupilli vel pro eo fuerit obligatus aut rem suam creditori ejus obligaverit.

2. Tutors, again, who are liable to the action tutela, are not, properly speaking, bound by a contract, for there is no contract made between the tutor and the pupil, but as they are certainly not bound by a delict, they seem to be bound quasi ex contractu. In this case, too, there are reciprocal actions, for not only has the pupil an action tutelæ against the tutor, but, in his turn, the tutor has an actio contraria tutelæ against the pupil, if he has incurred any expenses in managing the pupil's property, or has entered into an obligation for him, or given his own property as security to the pupil's creditors.

D. xliv. 7. 5. 1.

We should add here the corresponding case of the curator. His negotiorum gestio did not give rise to a special action, but to the actio negotiorum gestorum contraria, of which he could avail himself to reimburse himself for all reasonable expenses. (D. iii. 5. 3. 5.)

Quasi ex contractu teneri videntur. The exact translation would be 'seem to be bound by a tie analogous to that by which persons are bound under contracts;' but as this is too long a phrase to repeat every time the words quasi ex contractu occur, the Latin has been retained in the translation.

3. Item si inter aliquos communis sit res sine societate, veluti quod pariter eis legata donatave esset, et alter eorum alteri ideo teneatur communi dividundo judicio, quod solus fructus ex ea re perceperit, aut quod socius ejus in

3. So, again, if a thing is common to two or more persons, without there being any partnership between them, as, for instance, if they have received a joint legacy or gift, and one of them is liable to the other by an action communi dividundo, because he alone has

сс

The actio familia erciscunda was that by which any one heres applied to the judge to make a fair division of the inheritance.

5. Heres quoque legatorum nomine non proprie ex contractu obligatus intellegitur; neque enim cum herede neque cum defuncto ullum negotium legatarius gessise proprie dici potest: sed quia ex maleficio non est obligatus heres, quasi ex contractu debere intellegitur.

5. The heir, too, is not, properly speaking, bound in regard to legacies by a contract, for the legatee cannot be properly said to have made a contract with the heir or with the deceased; but, as the heir is not bound by a delict, he is considered to be bound quasi ex contractu.

D. xliv. 7. 5. 2.

The circumstance of accepting the inheritance imposed on the heir the obligation of carrying out the testator's wishes, and this he was compelled to do by the actio ex testamento. If a particular thing were given as a legacy, so that the legatee could bring a vindicatio, he might exercise his choice between the personal and the real action.

6. Item is, cui quis per errorem non debitum solvit, quasi ex contractu debere videtur. Adeo enim non intellegitur proprie ex contractu obligatus, ut, si certiorem rationem sequamur, magis, ut supra diximus, ex distractu quam ex contractu possit dici obligatus esse : nam qui solvendi animo pecuniam dat, in hoc dare videtur, ut distrahat potius negotium quam contrahat. Sed tamen proinde is, qui accepit, obligatur, ac si mutuum illi daretur, et ideo condictione tenetur.

6. A person to whom money not due has been paid by mistake, is bound quasi ex contractu. For so far is he from being bound by a contract, that, to reason strictly, we may say, as we have said before, that he is bound rather by the dissolution than by the formation of a contract; for a payment is generally made to dissolve, not to form, a contract; and yet he who receives it in the case we have mentioned is bound exactly as if it had been given him as a mutuum, and is therefore liable to a condictio. D. xliv. 7. 8. 3.

If a person knowingly made a payment not due, he could not recover what he paid, as the payment was treated as a gift; nor

could he, if he paid what was due by a natural, though not by a legal, obligation, or paid sooner than he need have done what he must pay at a certain date; but he could recover if he paid, under a conditional undertaking, before the event had happened. (D. xii. 6. 64.) Whether the error which would permit him to recover might be one arising from ignorance not only of fact but of law is uncertain. We find on the one hand such statements as Juris ignorantia suum petentibus non nocet (D. xxii. 6. 7), and on the other such as Regula est juris quidem ignorantiam cuique nocere (D. xxii. 6. 9; C. i. 18. 19).

The word 'pay,'' solvo,' must be taken in a much more extended sense than the payment of money. It must be considered as including anything given to or done for another.

It is here said that the person who receives what is not due is bound not merely quasi ex contractu, but as if he had been bound by a particular contract, viz. mutuum. So the persons interfering in the affairs of another, the tutor and the curator, are bound as if by a mandate, and the persons mentioned in paragr. 3 and 4 as if they were bound by the particular contract of societas.

The remedy of the person who had paid by mistake was termed condictio indebiti, and if the thing paid or given over was money, or anything of which an equal quantity could be given in return, the action was precisely like the condictio certi protecting a mutuum. (See Tit. 13. pr. note.) But if it was not of this nature, if, for example, a freedman, bound to render some services to his patron, had by mistake rendered other services, he could recover the value of the services rendered, and this was an uncertain amount. This does not resemble the position of a person recovering a mutuum. (D. xii. 6. 26. 12.) The non-liability of a pupil to repay what he had received without being due to him has been noticed in Tit. 14. 1.

7. Ex quibusdam tamen causis repeti non potest, quod per errorem non debitum solutum sit. Namque definiverunt veteres, ex quibus causis infitiando lis crescit, ex his causis non debitum solutum repeti non posse, veluti ex lege Aquilia, item ex legato. Quod veteres quidem in his legatis locum habere voluerunt, quæ certa constituta per damnationem cuicumque fuerant legata nostra autem constitutio cum unam naturam omnibus legatis et fideicommissis indulsit, hujusmodi augmentum in omnibus legatis et fideicommissis extendi voluit: sed non omnibus legatariis præbuit, sed tantummodo in his legatis et fideicommissis, quæ sacrosanctis ecclesiis ceterisque venerabilibus locis, quæ religionis vel pietatis intuitu hono

:

7. In some cases, however, money paid by mistake cannot be recovered. The ancients have decided that this is so in cases in which the amount recovered is increased if the liability is denied; as, for instance, in actions brought under the lex Aquilia, or with respect to a legacy. The rule was only applied by the ancients, in the case of legacies, where specific things were given per damnationem. But our constitution, which has placed all legacies and fideicommissa on the same footing, has decided that this increase should be extended to all legacies and fideicommissa. It has not, however, given it in behalf of all legatees, but only in the case of legacies and fideicommissa left to holy churches and other venerable places held in honour from feelings of religion or piety;

such legacies, although paid when not due, cannot be recovered.

rificantur, derelicta sunt, quæ si indebita solvantur, non repetuntur.

GAI. ii. 283; iv. 9. 171; C. iv. 5. 4; C. i. 2. 23.

This penalty, first exacted from those who denied that a judgment pronounced against them had been pronounced, was extended to cases of refusing to pay legacies given per damnationem, to cases under the lex Aquilia (Tit. 4. 3), and to many other cases. (Tit. 4. 6. 23.)

In all cases where by denying his liability the person liable might have an increased amount ultimately recovered against him, it was considered that paying the thing for which he was, or for which he thought himself, liable, was but a mode of escaping from paying a penalty, and that it was paid in order to attain security. If, therefore, it was discovered that the thing need not have been paid, yet, as the person who paid it had paid it to purchase security, he could not recover it back.

Nostra constitutio. This constitution is not to be found in the Code, but we have provisions in the Code bearing on the subject. (See C. vi. 43. 2. 1-3.)

Ceteris venerabilibus locis. Such, for instance, as monasteries, asylums for strangers, orphans, the aged, &c. (C. i. 2. 23.)

TIT. XXVIII. PER QUAS PERSONAS NOBIS
OBLIGATIO ADQUIRITUR.

Expositis generibus obligationum, quæ ex contractu vel quasi ex contractu nascuntur, admonendi sumus, adquiri vobis non solum per vosmet ipsos, sed etiam per eas quoque personas, quæ in vestra potestate sunt, veluti per servos vestros et filios: ut tamen, quod per servos quidem vobis adquiritur, totum vestrum fiat, quod autem per liberos, quos in potestate habetis, ex obligatione fuerit adquisitum, hoc dividatur secundum imaginem rerum proprietatis et ususfructus, quam nostra discrevit constitutio: ut, quod ab actione commodum perveniat, hujus usumfructum quidem habeat pater, proprietas autem filio servetur, scilicet patre actionem movente secundum novella nostræ constitutionis divisionem.

After having gone through the different kinds of obligations which arise from a contract, or arise quasi ez contractu, we may observe that you may acquire an obligation, not only by yourselves. but also by those who are in your power. as your slaves or children. But there is this distinction in acquiring by slaves or by children, that what is acquired for you by your slaves is entirely yours, while that which has been acquired by an obligation through children in your power is divided as to the ownership and usufruct according to the scheme as to the ownership and usufruct of things laid down in our constitution. Thus, of all that is gained by an ac tion, the father will have the usufruct, and the ownership will be reserved for the son, that is to say, when the action is brought by the father in conformity with what is laid down by our new constitution.

GAI. iii. 163; C. vi. 61. 8. 3.

By acquiring an obligation is meant that we become creditors, and have a right to the action necessary to enforce the obligation.

As to the division of the usufruct and ownership, see Bk. ii. Tit. 9. 1. It is the object of the obligation, it may be observed, not the obligation itself, that is thus divided between the father and the son. Only the father could bring the action to enforce the obligation. (C. vi. 61. 1. 3.)

1. Item per liberos homines et alienos servos, quos bona fide possidetis, adquiritur vobis, sed tantum ex duabus causis, id est si quid ex operis suis vel ex re vestra adqui

rant.

See Bk. ii. Tit. 9. 4.

1. Again, acquisition is made for you by freemen, and by slaves belonging to others, whom you possess bona fide, but only in two cases, namely, when it arises from their labours, or from something belonging to you. GAI. iii. 164.

Per liberos homines, i.e. by persons really free, but whom we bona fide believe to be slaves.

2. Per eum quoque servum in quo usumfructum vel usum habetis, similiter ex duabus istis causis vobis adquiritur.

2. Acquisition is equally made for you in the same two cases by a slave of whom you have the usufruct or

use.

GAI. iii. 165; D. vii. 8. 14.

See Bk. ii. Tit. 9. 4.

In the case of a slave of whom we have only the use, we can only acquire when the two cases unite, i.e. when his labour is expended on something that is our property, for we cannot derive any benefit from his labour expended elsewhere.

3. Communem servum pro dominica parte dominis adquirere certum est, excepto eo, quod uni nominatim stipulando aut per traditionem accipiendo illi soli adquirit, veluti cum ita stipuletur: Titio domino meo dare spondes?' sed si unius domini jussu servus fuerit stipulatus, licet antea dubitabatur, tamen post nostram decisionem res expedita est, ut illi tantum adquirat, qui hoc ei facere jussit, ut supra dictum

est.

3. A slave held in common undoubtedly acquires for his different owners in proportion to their interests in him, excepting that, in stipulating or receiving by tradition for one only, whom he mentions by name, he acquires only for this one; for instance, if he stipulates thus, 'Do you engage to give to Titius my master?' But if the slave has stipulated by order of one master only, in spite of former doubts, there is no question since our constitution, but that he acquires, as we have already said, for him alone who has given him the order.

GAI. iii. 167; C. iv. 27. 3.

The text only notices the acquisition of obligations through others as recognised by the civil law, i.e. through slaves and sons in potestate, and does not notice the prætorian changes by which the principal acquired obligations through his agent. (See Tit. 26. pr.)